Oakley v. Wisconsin

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Determined whether it is constitutional to impose a requirement that an individual not procreate as a condition of probation, where violation of the condition would subject the person to imprisonment.

Full Case Title: 

Oakley v. Wisconsin, 629 N.W. 2d 200 (Wis. 2001), cert. denied, 71 U.S.L.W. 3234 (October 7, 2002)


  • Reproductive Rights
  • Parental Rights
  • Authored Amicus Brief


Summary of the Case

David Oakley, the father of nine children, was sentenced to three years in prison and five years probation for not paying child support for a four-month period subsequent to his release from prison in 1998. Mr. Oakley had accumulated a child support debt of twenty-five thousand dollars but had nonetheless paid seventy percent of his overall child-support obligation. At sentencing, the trial judge sua sponte ordered Mr. Oakley to not father any additional children during the five-year probation unless he could demonstrate the financial ability to support an additional child and consistent support of the children that he already has. Thus, Mr. Oakley is subject to imprisonment should he father another child without advance permission from the State.

Our Role in the Case

Legal Momentum took the lead in writing an amici curiae brief in support of the petition for certiorari on behalf of women's rights, social justice, and reproductive choice organizations. The brief argued that the no-procreation condition unconstitutionally infringes on protected reproductive rights and that the decision conflicts with Supreme Court precedents subjecting state interference with fundamental rights to heightened scrutiny. The no-procreation condition is also potentially coercive of abortion. The brief argued that the Wisconsin Supreme Court's decision, beyond infringing on the rights of Oakley and his intimate partner's rights, may have a wide impact on the fundamental privacy rights of vulnerable populations and encourage coercive population control measures.


A divided Wisconsin Supreme Court upheld the no-procreation condition imposed on Mr. Oakley. The majority applied a reasonableness standard to uphold the condition and held that the restriction on Oakley's reproductive rights was not subject to strict scrutiny. The dissent, joined by all three women on the court, recognized that "the majority has essentially authorized a judicially-imposed 'credit check' on the right to bear and beget children. . . . [T]he cases in which such a principle might be applied are not uncommon." Oakley, 629 N.W.2d at 219.

The Supreme Court denied certiorari on October 7, 2002.